News & Insights

Employer v Employee: Can You Use Evidence Obtained under Threat of Prosecution?

“… you are going to be a very sorry man you (sic) probably going to sit in jail tonight” (a “dirty dozen threat” quoted in the judgment below)

When we hear of employers and employees at loggerheads with each other in our court system, we normally think of labour disputes – strikes, disciplinary hearings, unfair dismissals and the like.

But at times such disputes end up in our normal civil courts, dealing with issues which potentially apply to all civil claims. An interesting SCA (Supreme Court of Appeal) case provides a good example.

An accused diamond thief sued for R6m

A business which processes mine dumps to find and then sell rough diamonds employed a ‘Final Recovery Manager’ in a senior position of trust.

Monitoring of workplace CCTV surveillance raised suspicion that the manager had been stealing diamonds.

Confronted, he made a videotaped confession, signed a R5m acknowledgment of debt, paid over R530,000 cash as part proceeds of stolen diamonds, and assisted in the recovery of other stolen diamonds. He later gave his employer a copy of his full confession to the police and also consented to a second interview, similarly recorded.

He was prosecuted but acquitted after the criminal court found that his statement to the police had not been freely and voluntarily made. The CCTV surveillance footage was not put in as evidence at the criminal trial – relevant because the civil court later found it to provide evidence of theft.

The employer then sued the manager for R6.015m. He objected to the admission in evidence of his various confessions, admissions and statements on the grounds of unlawful duress.

The High Court however allowed the admissions in as evidence, a decision upheld on appeal by the SCA.

“Spilling the beans” after the “dirty dozen” threat

In his first interview the employee initially denied the allegations of theft, but “spilled the beans” after he was exhorted to tell the truth and was presented with a “dirty dozen” option, including threats of arrest, prosecution, and adverse publicity if he lied.

The SCA held that -

“The admissibility of evidence in a criminal trial stands on a different footing from a civil dispute”, partially because “a criminal matter is a contest in which the might of the State is pitted against an individual. In a contest of this kind, a bad result for an accused person may lead to a loss of freedom. Such a consequence is incomparably different from any outcome in a civil dispute.”

“An employer is not only entitled to confront an employee about an allegation of wrongdoing, but is also obliged to do so, even before a formal disciplinary hearing is convened.” That’s because of the basic rule in our law that both sides of a story must be heard and taken into account.

There were no threats of physical violence nor of anything unlawful.

What was said to the employee immediately before he began to confess to his theft was not extortion or blackmail, nor was it contra bonos mores (against public policy) – “it did not result in [the employer] exacting or extorting something to which it was not otherwise entitled. The contrary is true.”

“Even in our law of criminal procedure an exhortation to tell the truth will not exclude a confession … Not even a threat of the probability of arrest constitutes undue influence … After all, the test is whether there is ‘any fair risk of a false confession.’”

The employee had therefore failed to prove that his admissions were obtained by any “legally recognised duress”, nor had his constitutional right to a fair trial been breached.

Clearly, it will depend on the facts of each case whether a threat of prosecution and/or adverse publicity constitutes unlawful duress. Take legal advice before making accusations or relying on any admissions flowing from such threats.